AA2-00376

AA2-00376

The panel found the claimant's fear of attachés arose from a primarily criminal/extortionate motive and thus failed the Convention nexus test, so he is not a Convention refugee; however, applying the contextual standard of proof adopted in Tameh (a 'reasonable chance'/'serious possibility' standard) to s.97(1)(b), and on the documentary and testimonial evidence that attachés operate with impunity and state protection is unavailable, the panel concluded there is a reasonable chance/serious possibility the claimant would face risk to life or cruel and unusual treatment on return and therefore is a person in need of protection under s.97(1)(b).

Citation
AA2-00376
Parties
Claimant: XXXXXXXXX; Refugee Protection Officer: Josée Besner; Designated Representative: N/A; Minister's Counsel: N/A
Court
Refugee Protection Division
Jurisdiction
Canada
Judgment Date
2 March 2004
Procedural Posture
Refugee Protection (section 97(1)(b)) / Decision (rpd)
Outcome
Claimant is not a Convention refugee; claimant is a person in need of protection under s.97(1)(b) IRPA.
Legal Topics
Person in Need of Protection, Convention Refugee Nexus, Standard of Proof, State Protection, Risk to Life, Cruel and Unusual Treatment
Source Language
English
Immigration Law Refugee Law Administrative Law International Human Rights Law Statutory Interpretation Person in Need of Protection Convention Refugee Nexus Standard of Proof +3 more

Case Brief

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Parties

XXXXXXXXX

Claimant

Josée Besner

Refugee Protection Officer

N/A

Designated Representative

N/A

Minister's Counsel

Procedural Posture

Refugee Protection (section 97(1)(b)) / Decision (rpd)

Legal Issues

  1. 1 Whether claimant meets Convention refugee definition (nexus)
  2. 2 Whether claimant is a person in need of protection under s.97(1)(b) IRPA
  3. 3 Appropriate standard of proof for s.97(1)(b) claims

Ratio Decidendi

The panel found the claimant's fear of attachés arose from a primarily criminal/extortionate motive and thus failed the Convention nexus test, so he is not a Convention refugee; however, applying the contextual standard of proof adopted in Tameh (a 'reasonable chance'/'serious possibility' standard) to s.97(1)(b), and on the documentary and testimonial evidence that attachés operate with impunity and state protection is unavailable, the panel concluded there is a reasonable chance/serious possibility the claimant would face risk to life or cruel and unusual treatment on return and therefore is a person in need of protection under s.97(1)(b).

Court Disposition

Claimant is not a Convention refugee; claimant is a person in need of protection under s.97(1)(b) IRPA.

Orders

  • Claim granted under s.97(1)(b) of the Immigration and Refugee Protection Act — claimant recognized as a person in need of protection; Convention refugee claim rejected.